Affinitiv hereby grants to Customer, and Customer hereby accepts from Affinitiv a non-transferable, non-exclusive license to access and use the products and services listed on the face of this Agreement and such other Services as are provided to the Customer from time to time subject to the terms and conditions set forth in this Agreement (the “License”). This License is restricted to use by Customer for Customer’s own internal business purposes. It does not extend to any parent, subsidiary, affiliate, separate roof top or any other person or entity. Customer shall have no right to sublicense, distribute or otherwise transfer or permit usage of the Services by any other person except as expressly authorized and contemplated hereunder. Title to the Services and all rights of copyright, patent or other intellectual property therein are and shall at all times remain solely and exclusively with Affinitiv. Customer shall keep this License free and clear of all liens, claims and encumbrances.
The term of this Agreement and the License granted hereunder shall commence on the Effective Date and shall continue for the period set forth on the face of this Agreement, or, if no such period is provided, shall continue for a period of one (1) year (the “Term”). The Term shall automatically renew for one year at the end of each then current term at Affinitiv’s then current rates unless Customer provides written notice of termination to Affinitiv within Thirty (30) days of the end of the then current term. This Agreement and the License shall also terminate at the option of Affinitiv upon breach by Customer of the terms of this Agreement. The termination of this Agreement (for whatever reason) shall not terminate any liability or obligation of Customer hereunder which accrues prior to such termination, including, without limitation, Customer’s obligation to pay any amounts due to Affinitiv through the end of the then current Term or liability for loss or damage on account of such breach. Upon termination, Customer shall cease using the Services, as well as all confidential information and other information, documentation and processes of Affinitiv. Affinitiv may terminate this Agreement for any reason whatsoever, with or without cause, including without limitation use of the Services in violation of this Agreement or otherwise in a manner that could reasonably harm the reputation of the Services or the reputation of Affinitiv or any of its officers, managers, directors or owners. Customer may not terminate this Agreement other than cause of gross negligence or fraud on Affinitiv’s behalf. If Customer (i) terminates agreement early; or (ii) Customer sells or transfers its assets to or merges with a third party without both (A) the written consent of Affinitiv and (B) the successor to Customer’s assets fails to enter into a written agreement with Affinitiv to assume Customer’s obligations hereunder, then in the case of either of (i) or (ii), all unpaid balances and the remaining unbilled term of the contract are due and payable effective immediately. If Affinitiv terminates this Agreement and the License for reasons other than breach of this Agreement or damage to reputation, Affinitiv agrees to refund to Customer remaining license fees received in advance from Customer.
If any payment due by Customer is past due by fifteen (15) or more days, and Affinitiv has notified Customer, via fax, email or certified mail, to cure the matter for another ten (10) days from the Fifteenth (15th) day past due, Affinitiv may, in addition to any other remedies of Affinitiv, “disconnect” Customer from the use of the Services. Affinitiv will “reconnect” Customer to the Services upon payment of a $200 reconnection fee and all payments due to date. Any payment due by Customer which has not been received by Affinitiv within ten (10) days of its due date may be assessed a $50.00 late payment fee. Payments shall be made to Affinitiv at the address provided on the face of this Agreement or such other address as Affinitiv may provide in writing from time to time. Affinitiv reserves the right to pass on to Customer increases in Affinitiv’s third party costs and governmental taxes. In addition, Affinitiv may at its option, upon thirty (30) days prior written notice to Customer, implement general price increase applicable to the Services.
FTC and Other DNC Registrations (If enrolling in applicable programs that offer solutions for calls and/or texts)
Customer hereby authorizes Affinitiv to annually (or more frequently as required by applicable law) register Customer with the FTC Do Not Call Registry and the do not call registry of each state identified by Customer in its subscription agreement (collectively, “DNC Registration”) so that Customer is authorized to obtain the FTC and each such state’s DNC lists, and Customer agrees to reimburse Affinitiv for all charges imposed by said governmental agencies for said registrations.
Use of the Services/Adoption of Telephone Solicitation Policy. Customer acknowledges receipt of Affinitiv’s Telephone Solicitation Policy (the “Policy”). Prior to using the Services, Customer agrees to take any and all action necessary to adopt and enforce the Policy, the terms of which are hereby incorporated into this Agreement. Customer may amend the Policy for its use in connection with the Services, but only according to terms which, upon application to the Services, would be in compliance with applicable laws and only where such amendment is more restrictive than the terms provided in the Policy and/or applicable law (whichever is more restrictive). Customer shall provide timely written notice of any changes to the Policy to Affinitiv. Customer acknowledges that telephone solicitation is regulated pursuant to federal and state law, and any modifications made by Customer to the Policy which are less restrictive than applicable law may be in violation of such law. Customer agrees to comply with all applicable federal and state laws when using the Services, including laws that apply in the state where Customer calls using the Services are made, as well as laws that apply in states where Customer calls using the Services are received. Customer agrees to take reasonable steps, independent of Affinitiv and KMA, to stay informed as to applicable state and federal laws as it applies to Customer’s use of the Services. Customer further agrees that all marketing and other campaigns designed for use with the Services shall be designed solely by Customer, subject to technical support and a help line that may be available from time to time through Affinitiv. Customer shall have access to recommended best of class scripts of Affinitiv in the design of Customer’s consumer telephone campaign by Customer. Customer’s failure to strictly follow and enforce the Policy and/or failure to operate in connection with applicable law shall be grounds for termination of this Agreement by Affinitiv. No Services fees shall be refundable pursuant to a termination as a result of a violation of this Section, and Customer agrees to pay, in addition to any other damages resulting from such violation, all remaining Services fees due or to become due through the remainder of the then existing Term as defined in the Agreement. Customer further covenants to Affinitiv to promptly notify Affinitiv in writing of all requests that Customer receives from consumers to be included on Customer’s no-call list, so that the Services will not permit calls to be made to such consumer in respect of the Services. Customer hereby agrees and acknowledges that Affinitiv, or a third party designated by Affinitiv, may review and evaluate digitized telephone calls arising from the Services to Customer’s Customers for internal quality assurance or at Customer’s request, and may utilize and publish call traffic statistics without identifying Customer.
Customer acknowledges and understands that there are strict legal limitations on the sending of pre-recorded or text messages to wireless phone and other wireless devices. Customer certifies that no calls or text messages will be made to a wireless phone or other wireless device in respect of the Services, unless Customer has first received advance written consent from each proposed consumer recipient, which consent complies with applicable law. Affinitiv agrees that it shall never override the FTC’s, any states’ or Customer’s specific Do Not call list or KMA’s do not call list in performing the Services.
E-Mail/Text Message Policies
Customer agrees to abide by all applicable laws and Affinitiv policies (as such policies may be adopted or amended by Affinitiv from time to time or provided by Affinitiv to Customer in writing) regarding the use of the Services to transmit any electronic mail (e-mail) or text message to consumers (collectively, each a “Message”). Affinitiv’s policies in this regard include but are not limited to the following:
Customer agrees that it will not use the Services to transmit any Message that:
Customer will not utilize the Services to transmit any Messages in text form to a wireless phone or wireless device to any consumer unless Customer has obtained such consumer’s express prior written consent to receive such Messages. Customer must also provide all Message recipients with the ability to opt-out of receiving future Messages from Customer as follows:
Customer agrees that as a condition to activation and/or continuation of the services, Customer will agree to Affinitive and/or applicable third party terms regarding data retrieval. Customer acknowledges that terms have been provided to Customer and that the terms may be modified from time to time by Affinitiv or applicable third party provider.
Customer represents and warrants to Affinitiv that in all cases where the trademark, copyright or other intellectual property of a third party is used in connection with the Services, Customer has the written consent of said third party (through ownership rights or a valid, enforceable license) to use said intellectual property in the manner and to the extent so used and in the jurisdiction used. Customer further represents and warrants to Affinitiv that the use of the intellectual property of any third party as contemplated by this Agreement or the Services will not infringe the intellectual property rights of any third party.
Additional Intellectual Property Issues. Customer shall not itself, or permit any third party to, modify, reverse engineer, reverse compile or disassemble the Services in whole or in part, including without limitation the object or source code underlying the Services, nor shall it use the process which is used with the Services or any variation thereof for any reason whatsoever other than as expressly authorized and contemplated by this Agreement. Customer acknowledges and agrees that all content, products, services, programs and/or technology on Affinitiv’s website is the property of Affinitiv, and Customer shall not claim any interest in such property except as expressly provided and contemplated under this Agreement. Such information may not be copied, distributed, displayed, adapted, modified or made into derivative works, or otherwise used even if merged with other websites, except as expressly authorized and contemplated by this Agreement. Any use of content, code or process without the express written permission of Affinitiv or the rightful owner is strictly prohibited. Affinitiv reserves any rights not expressly licensed herein. Customer agrees not to alter or remove any copyright or trademark notice or proprietary legend contained in or on any content. Any trademark, logos and service marks displayed on Affinitiv’s website, whether registered or unregistered are property of their respective owners. Customer agrees that it will not directly or indirectly infringe on any copyrights or patents or other intellectual property either approved or pending for Affinitiv, including without limitation, any attempts to develop a similar or like system that would be competitive with the Services.
It is the responsibility of Customer to make all decisions related to the appropriateness of data supplied for use through the Services (whether by telephone, e-mail or text messaging), as well as Customer’s responsibility to maintain and enforce Customer’s Telephone Solicitation Policy and the use of the Services in compliance with all applicable laws. Customer expressly assumes the risk of any error or omission in connection with the information used or transmitted pursuant to this Agreement and the calls made or Messages sent by or on behalf of Customer. Customer (i) shall follow the terms of the Telephone Solicitation Policy in the form recommended by Affinitiv, (ii) use only scripts exactly as approved in writing by Affinitiv and (iii) otherwise comply with the terms of this Agreement and follow all applicable federal, state and other laws. Customer shall indemnify, defend and hold harmless Affinitiv, its managers, officers, directors, employees and owners from and against any and all losses, damages, liability, claims, costs (including reasonable attorneys’ fees and court costs), judgments and other expenses relating to or arising out of, or on account of, any breach of this agreement or the terms of the License or any allegations, incidents or claims related to the use of the Services. The indemnification obligation described above shall survive termination of this Agreement for the applicable statute of limitations period.
Affinitiv does not warrant that the Services will be uninterrupted or error free. Affinitiv does not warrant internet security. Affinitiv makes no other warranty, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or information security in relation to the use of the Services or any related services. Customer acknowledges that certain products are provided through software or services of third parties, and AFFINITIV PROVIDES NO SEPARATE WARRANTIES FOR THIRD PARTY PRODUCTS AND SERVICES, BUT AFFINITIV AGREES TO ASSIGN ALL SUCH WARRANTIES TO CUSTOMER TO THE EXTENT ASSIGNABLE. With respect to Mail programs, Affinitiv does not guarantee any minimum number of service department customer visits. In no event shall Affinitiv or its officers, managers, directors, employees or owners be liable for damages, claim or loss of customer or any other person arising out of the ownership, operation, use or otherwise of the Services, including without limitation compensatory, incidental, indirect, special, consequential or exemplary damages, loss of profits, loss of sales or business, loss of goodwill or damages resulting from lost data or inability to use data, or damages resulting from use of the Services by Customer and/or any person in violation of applicable law, irrespective of whether Affinitiv has been informed of, knew of or should have known of the likelihood of such damages. This limitation applies to all causes of action whatsoever arising out of or in any way related to or connected with this agreement, whether arising from negligence, breach of contract, breach of warranty, strict liability, misrepresentation, or other torts. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN AFFINITIV AND CUSTOMER, AFFINITIV’S MAXIMUM LIABILITY TO CUSTOMER WITH RESPECT TO THIS AGREEMENT AND THE SERVICES SHALL BE EQUAL TO THE LESSER OF THE AGGREGATE FEES PAID UNDER THIS AGREEMENT BY CUSTOMER AND RECEIVED BY AFFINITIV DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE IN WHICH THE FACTS UNDERLYING THE CLAIM FOR INDEMNIFICATION OCCURRED AND $50,000. CUSTOMER WILL NOT USE THE SERVICES TO SEND ANY ELECTRONIC MAIL, VOICE MESSAGES OR TEXT TO WIRELESS DEVICES TO ANY INDIVIDUAL UNLESS CUSTOMER HAS OBTAINED SUCH INDIVIDUALS “OPT-IN” CONSENT TO RECEIVE SUCH MESSAGES.
Customer may not assign this Agreement or any of Customer’s rights or obligations hereunder without the prior written consent of Affinitiv which may be exercised in the sole discretion of Affinitiv. Affinitiv may assign this Agreement for any reason, in its sole discretion, including statutory assignments such as merger, and Affinitiv’s rights and/or obligations hereunder, including without limitation assignment of amounts due by Customer to a financial institution, factor or leasing company of Affinitiv’s choice. If Customer sells or transfers its assets to or merges with a third party without both (A) the written consent of Affinitiv and (B) the successor to Customer’s assets fails to enter into a written agreement with Affinitiv to assume Customer’s obligations hereunder, then all unpaid balances and the remaining unbilled term of the contract are due and payable effective immediately.
This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois and the United States but without regard to conflicts of law principles thereof. Jurisdiction and venue for any dispute between the parties arising under or involving the terms of this Agreement shall be exclusively in the United States District Court for courts located in Cook County, Illinois, and the judgment of said courts on any matter may be entered in any court having jurisdiction over a party to this Agreement.
In the event any provision of this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected thereby and shall continue to be valid and enforceable and if, for any reason, any applicable authority finds that any provision of this Agreement is invalid, illegal or unenforceable as written, but by limiting such provision it would become valid, legal and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. If it is determined that the Services cannot be used for one or more applications by Customer as a result of restrictions set forth in applicable law, Customer agrees to comply with all such restrictions, and such restrictions shall not otherwise impact the terms of this Agreement.
Nothing contained in this Agreement and no action taken by the parties pursuant hereto shall be deemed to constitute the parties as a partnership, an association, joint venture or other entity.
Any notice or demand desired or required to be given hereunder shall be in writing and (unless otherwise specified herein) deemed given when personally delivered (including delivery by commercial overnight courier service), or when deposited in the United States mail, postage prepaid, sent certified or registered, and addressed to the address set forth on the signature page hereof, or to such other address or person as hereafter may be designated in writing by the applicable party.
Delays or failure of Affinitiv in the performance of its obligations hereunder, including but not limited to operation of the Services, shall be excused where such a delay or failure is caused by events beyond the reasonable control of Affinitiv, including, but not limited to, accidents, fires, earthquakes, equipment malfunctions, service interruptions (including televisions, telephone, the internet), labor disputes and otherwise.
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors, legal representatives and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto (and their respective heirs, successors, legal representative and permitted assigns) any rights, remedies, liabilities or obligations under or by reason of this Agreement.
Changes by Affinitiv. Affinitiv reserves the right to modify, add, delete, or substitute hardware, software, materials, programs or services, or portions thereof, as part of its continued maintenance of the Services. In its sole discretion, Affinitiv may change the amount, structure, method and/or basis of Customer’s fees at any time during the Term which shall be effective upon thirty (30) days written notice to Customer and shall not require an affirmative response or any further action by the parties; provided, however, that any postal rate changes will be effective immediately.
Modification of Services. Customer acknowledges that the services may be altered, modified or updated from time to time throughout the Term of his Agreement to reflect Affinitiv’s then current Service offering.